Miller and Minority Lawmakers: NCLB Waivers Hinder Educational Equity

The Obama administration's waivers from the No Child Left Behind Left Behind Act have allowed some states to back off the core goal of the NCLB law—educational equity for poor and minority students—a group of powerful House Democrats said in a letter sent to U.S. Secretary of Education Arne Duncan Wednesday.

The lawmakers demand that the department to set a high bar for waiver renewal, a process that's underway right now.

The letter was signed by Rep. George Miller of California, the top Democrat on the House education committee, and members of the three caucuses in Congress representing minority lawmakers—the Congressional Black Caucus, Hispanic Caucus, and Asian Pacific Caucus. Together, they're known as the "Tri-Caucus" and represent a key voting bloc among House Democrats.

The letter marks the most pointed criticism yet from inside the Beltway of the impact of the waivers on English Language Learners, students in special education, and minority children—and comes from a group of the Obama administration's most powerful allies in Congress.

"The federal role in education is historically a civil rights role, serving to protect and promote equity," the lawmakers write. "However we are concerned that some state policies, approved under the initial round of waivers, have not lived up to the mission."

Specifically, the lawmakers call out Duncan—and states—for the use of so-called "super subgroups" which allow states to combine traditional NCLB subgroups—disadvantaged students, minority students, English-language learners, and students in special education—into a single group for accountability purposes. But the technique could mask the dismal performance of a particular group of kids, the lawmakers argue.

"These policies mean that students may slip through the cracks of averages and ambiguities," they write.

The lawmakers also specifically criticize the department for allowing states to set a low bar when it comes to graduation rates, by permitting students who graduate in five or even six years to carry the same weight for accountability purposes as a student who graduates in four. (That's an issue Miller, who is retiring after this term, has raised before.)

And they worry that students in special education and ELLs are being neglected by the waiver process. They want the department to publicly release data that shows how these students—and others—are faring academically under the waivers.

Finally, they want the department to press states on the equitable distribution of teachers, which is emerging as an issue for the department.

Initially, the department had planned to attach further strings to waiver renewal—by specifically requiring states to ensure that kids in high poverty schools are taught by effective teachers. But the department backed off that idea, instead floating the possibility of a "50-state strategy" on teacher equity that would impact both waiver and non-waiver states. The 42 states that have waivers will instead be able to extend them through a more streamlined process.

But Miller and the Tri-Caucus are worried that a simplified system could further water down protections for subgroup students.

"We are going to be watching and paying attention to this," Miller said in an interview. "This is going to be a process where either the administration is serious about the civil rights of these children, or they're not."

If the administration fails to allow for civil rights protections, he added, "the department is going to get their ass handed to them by members of Congress."

But Chris Minnich, the executive director of the Washington-based Council of Chief State School Officers, had a very different take.

"I agree with a lot of the stuff in that letter," he said, "I believe we can prove what he wants us to prove. The states are the ones that developed higher standards. The states are the ones that have developed new accountability systems. We're open to improving them."

That said, Minnich added: "This is more just saber-rattling than anything."

While acknowledging the limited power of House Democrats, Minnich said, "If George Miller wants to do something, he should see that we get a new [ESEA] law."

But Sonja Santelises, the vice-president for K-12 policy and practice at the Education Trust, said she expects the concerns Miller and the Tri-Caucus raised to continue to resonate.

"It isn't about just this one letter," she said. Instead, she said the lawmakers are joining with a chorus of organizations, including civil rights and business groups, who have expressed concerns about the impact of the waivers on poor and minority students.

[UPDATE (1:30 p.m.): Dorie Nolt, a spokeswoman for the department, said in an email, "We have received the letter on Elementary and Secondary Education Act flexibility and look forward to responding. The Department shares the same commitment to protecting and promoting equity for students."

And she added, "The purpose of flexibility is to provide educators with freedom from specific requirements of the No Child Left Behind Act in exchange for rigorous and comprehensive plans designed to improve educational outcomes for all students, close achievement gaps, increase equity, and improve the quality of instruction in the classroom."

Under NCLB, more than three-quarters of the schools that were labeled as failing to meet achievement targets in the 2004-05 school year were still in need of improvement two years later, a department official said. The point of the waivers is to train the federal focus on the schools that are struggling the most, while allowing states and districts to use locally-tailored interventions in other schools that need to improve, the official added.

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